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2019 DIGILAW 356 (ALL)

Om Prakash v. State of U. P.

2019-02-11

SIDDHARTH

body2019
ORDER : 1. Heard Shri P.N. Singh, learned counsel for the appellant and learned A.G.A. for the State. 2. This appeal is directed against the judgment and order dated 16.3.2013 passed by Additional Sessions Judge, Court No. 9, Ghaziabad, in Session Trial No. 1291 of 2006, State vs. Om Prakash, arising out of Case Crime No. 619 of 2006, Police Station Loni, District Ghaziabad. 3. The appellant has been convicted under Section 376 IPC and sentenced to 10 years rigorous imprisonment and fine of Rs. 15,000/- and in default of payment of fine, one year's simple imprisonment has been directed. 4. The prosecution story is that the appellant and victim are neighbors and were residing as such for several years prior to the offence. As per the FIR, on 19.6.2006 the appellant called the victim to his house and committed rape and thereafter, he ran away and is residing in the house of his brother-in-law, Trilok, at Govind Town. The aforesaid FIR was registered on 20.6.2006 at 3:05 p.m. 5. As per the statement of victim under Section 164 Cr.P.C. she was coming back after purchasing soap, when the appellant, Om Prakash, called her in his house and asked her to sit with him to which she refused. Thereafter, he pushed her to sit on the bed and bolted doors from inside. He tied her mouth from her Chunni and also tied her hands and legs and thereafter, committed the alleged crime. He committed the same from 11:00 a.m. To 2:00 p.m. At 2:00 p.m. sister and brother-in-law of the appellant came and asked her to leave the house. Victim stated that call my mother and father and then only she will go back. Her mother and father came and gave her two slaps and started scolding her. The sister of the appellant went to drop her to her house, Om Prakash ran away after raping her. The cloths and undergarments of victim were sealed on 20.6.2006 and she was medically examined on the same day. As per the medical report, no internal or external injuries were found on her body. Hymen was found to be old torn and vaginal smear was taken for examination on the same day. As per the pathological report, no spermatozoa was found on slide taken and no definite opinion of rape was given by doctor. As per the medical report, no internal or external injuries were found on her body. Hymen was found to be old torn and vaginal smear was taken for examination on the same day. As per the pathological report, no spermatozoa was found on slide taken and no definite opinion of rape was given by doctor. As per the radiologist, the age of the victim was found to be about 18 years. From the report of forensic lab, sperms were found on the undergarments of the victim. 6. The victim was examined as PW-1 wherein she stated that appellant called her for operating hand-pump in his house and thereafter raped her at about 3:00 p.m. His sister and brother-in-law came and then the appellant ran away from the house. She was called in the house at 11 a.m. Both doors of the house were locked from outside and sister and brother-in-law of the appellant came in after opening the doors from outside and she told them about the entire incident and asked them to call her father and mother. Her father and mother came, but they did not took her alongwith them and thereafter brother-in-law and sister of the appellant dropped her to her house. Her father lodged the first information report on the next day. In her cross-examination, she has stated that she went from her house at 12 p.m. for purchasing cigarette and soap for Rs. 20/- and came back from the shop within three minutes. She further admitted that the appellant lives at a distance of 50 ft. from her house. Their houses are in the same lane. For going to the shop, the house of the appellant will not come in the way. Her Muasi, Mama, uncle and aunt also reside in near vicinity. After the incident, she came to her house at 3:30 p.m. alongwith her father and mother. She denied her earlier statement that her father and mother did not took her as wrong. She also denied that the statement recorded by the Investigating Officer to this effect was wrong. She went to her house with her parents and informed her father about the entire incident. She testified her statement under Section 164 Cr.P.C. is correct. She further stated that her parents took her to the house and the sister of the appellant also accompanied her, so that, her father may not beat her. She went to her house with her parents and informed her father about the entire incident. She testified her statement under Section 164 Cr.P.C. is correct. She further stated that her parents took her to the house and the sister of the appellant also accompanied her, so that, her father may not beat her. She further admitted that she knew the appellant for 10 years, ever since she is residing in this house. She has also admitted that brother-in-law and sister of the appellant also reside there. The appellant, Om Prakash, came to live there about 5-6 years ago. She admitted that she used to go to the house of Om Prakash, whenever, some work was there. She has admitted that she knows the sister and brother-in-law of the appellant and number of children they have. She has further admitted that in case, someone calls from her house, voice can be heard in the house of Om Prakash. She stated that she informed the Investigating Officer that Om Prakash called in his house on the pretext of water, in case, the same was not mentioned, she cannot say anything about the same. She has also stated before the Investigating Officer that her hands and legs were tied by accused by her Chunni and in case it is not mentioned, she cannot say anything. She denied any knowledge about the fact, as to who bolted the doors from outside and admitted that only after the doors were opened by the sister and brother-in-law of the appellant, she came to know that the doors were locked from outside. She admitted that even in the room, where she was raped, was locked from outside and it was opened for outside. She further stated in her cross-examination that the appellant, Om Prakash, ran away 15 minutes prior to his sister and brother-in-law coming to the house. She further admitted that her mother gave two slaps to her. She admitted that her uncle is in police and after coming to her house, her uncle, aunt, mother and father went to the police station. She failed to state the time, when she went to the police station, she could not even state, whether it was day or night. She further stated that only after the media persons were called, the report was registered. 7. The statement of her father, Harikishan, was recorded as PW-2. She failed to state the time, when she went to the police station, she could not even state, whether it was day or night. She further stated that only after the media persons were called, the report was registered. 7. The statement of her father, Harikishan, was recorded as PW-2. He only stated about the incident as told by his daughter and also added that the appellant threatened his daughter on the point of knife that in case, she discloses the incident to anyone, he will kill her. The mother of the victim, Beena, was examined as PW-3 and she also stated the story as stated by the victim and she was searching the victim and met Om Prakash in the way and asked, whether he has seen her daughter, Renu, he denied any knowledge about Renu. Ashok Kumar, Sub Inspector, who was the Investigating Officer, was examined as PW-4 and he proved the record of investigation. The doctor, Subharta Taliv, was examined as PW-5 and testified that she examined the victim and did not found any external and internal injury on her body and she prepared the slide of vaginal smear and sent it for examination. Kailash Babu, Head Master of Purv Madhyamik Vidhyalay, was examined, who proved that the victim has studied in his school from Class II to Class VIII and proved her date of birth as 4.6.1992 from the school record. Constable, Shiv Kumar, was examined as PW-7, who proved that he took the samples before the expert for chemical examination from the doctor. 8. The statement of the appellant was recorded under Section 313 Cr.P.C. In his statement, he stated that his marriage was fixed in Harsh Vihar and father of the victim wanted to marry the victim with him, to which, he was not agreeing and therefore, he was implicated in this false case. He stated that he is innocent and has been falsely implicated in this case. 9. Trilok Chand, brother-in-law of the appellant was examined as DW-1 and he denied any incident of rape by the accused. He stated that he had gone to fix the marriage of the appellant on the date of alleged incident. Jaipal was examined as DW-2. He stated that he is innocent and has been falsely implicated in this case. 9. Trilok Chand, brother-in-law of the appellant was examined as DW-1 and he denied any incident of rape by the accused. He stated that he had gone to fix the marriage of the appellant on the date of alleged incident. Jaipal was examined as DW-2. Jaipal is father-in-law of the appellant and he stated that on 19.6.2006, the accused, his brother-in-law and sister alongwith their children have come to house for fixing the marriage of the appellant with his daughter and marriage of his daughter has taken place with the accused. 10. Learned counsel for the appellant has submitted that there is discrepancy in the statement of the victim under Section 164 Cr.P.C. and in the examination-in-chief and cross-examination before the court. In her statement under Section 164 Cr.P.C. the victim has stated that the appellant called her inside the house and asked her to sit on the bed, but when she refused, she was forcibly made to sit thereon and the doors were bolted from inside, but in her statement before the court, she admitted that the room, wherein she was taken by the appellant, was locked from inside and only after the brother-in-law and sister of the appellant came, they opened the lock of the room. It has further been submitted that brother-in-law and sister of the appellant came at 2 p.m. but in her cross-examination she has stated that they came at 3 p.m. In her statement under Section 164, she has stated that she had not stated anything about the appellant running away, but in her cross-examination she has stated that he ran away 15 minutes prior to his sister and brother-in-law came to the house. It has further been pointed out that the victim has on the one hand stated that the doors were locked from outside and on other hand, she has stated that the appellant ran away from the house 15 minutes prior to his brother-in-law and sister came. It has further been submitted that there is no explanation how Om Prakash ran away, when the doors were bolted from outside. It has further been submitted that there is no explanation how Om Prakash ran away, when the doors were bolted from outside. In her statement under Section 164 Cr.P.C. the victim has stated that the accused violated her from 11:00 a.m. to 2:00 p.m. and at 2:00 p.m. his brother-in-law and sister came to the house, but there is no explanation why she did not raised any alarm for three hours, when she remained in the house, which she admitted in her statement. In case, someone called from her house, it would be heard in the house of the appellant and vice-versa. It has further been argued that the age of the appellant at the time of incident was about 18 years and the age of the victim has also been found to be about 18 years by the doctor. The reliance on the statement of Head Master of the school for the purpose of considering the age of the victim is erroneous since as per the Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Act the evidence of the school first attended is relevant for determination of the age of the victim, in case she has not passed High School Examination. In the present case, the victim has studied only upto Class VIIIth. The victim and the accused are of the same age, of the same locality, known to each other well and there is admission that the victim used to frequent house of the appellant and hence the possibility of consensual relationship cannot be ruled out. From the medical report also, she was found to be used to intercourse. Learned counsel for the appellant has finally submitted that the accused appellant is in jail since 16.3.2013 and considering the age of the accused-appellant, his period of incarceration in jail and the totality of the facts and circumstances, he may be directed to be released on the basis of the sentence he has already undergone. 11. Per contra, learned AGA appearing for the State has submitted that the punishment awarded to the appellant does not calls for any interference. As per the school record, the victim was minor and the prosecution has succeeded in proving its case to the hilt. 11. Per contra, learned AGA appearing for the State has submitted that the punishment awarded to the appellant does not calls for any interference. As per the school record, the victim was minor and the prosecution has succeeded in proving its case to the hilt. The accused has been rightly sentenced to undergo conviction for 10 years on the basis of material on record and there is no infirmity in the same. 12. The argument of learned counsel for the appellant that the sentence awarded to the appellant may be reduced to the period undergone, requires consideration of the various issues. The learned counsel for the appellant has also placed reliance upon Gopal Singh vs. State of Uttarakhand, (2013) 3 SCC (Cri.) 608 in which relying upon the judgment of Santa Singh vs. State of Punjab, (1976) 4 SCC 190 , the Apex Court has observed as under:- "........a proper sentence is the amalgam of many factors such as the nature of the offence, the circumstances - extenuating or aggravating - of the offence, the prior criminal record, if any, of the offender, the age of the offender, the record of the offender as to employment, the background of the offender with reference to education, home life, sobriety and social adjustment, the emotional and mental condition of the offender, the prospects for the rehabilitation of the offender, the possibility of return of the offender to a normal life in the community, the possibility of treatment or training of the offender, the possibility that the sentence may serve as a deterrent to crime by the offender or by others and the current community need, if any, for such a deterrent in respect to the particular type of offence. These are factors which have to be taken into account by the court in deciding upon the appropriate sentence and, therefore, the legislature felt that, for this purpose, a separate stage should be provided after conviction when the court can hear the accused in regard to these factors bearing on sentence and then pass proper sentence on the accused." 13. In Jameel vs. State of U.P. (2010) 12 SCC 532 , the Apex Court speaking about the concept of sentencing observed as under:- "15. In operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. In Jameel vs. State of U.P. (2010) 12 SCC 532 , the Apex Court speaking about the concept of sentencing observed as under:- "15. In operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. 16. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence." 14. In Shailesh Jasvantbhai vs. State of Gujarat, (2006) 2 SCC 359 , the Apex Court has observed thus: "The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross-cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of "order" should meet the challenges confronting the society. Friedman in his Law in Changing Society stated that: State of criminal law continues to be - as it should be - a decisive reflection of social consciousness of society. Therefore, in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. Therefore, in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration." 15. In Guru Basavaraj vs. State of Karnataka, (2012) 8 SCC 734 while discussing the concept of appropriate sentencing the Apex Court has expressed that: "It is the duty of the court to see that appropriate sentence is imposed regard being had to the commission of the crime and its impact on the social order. The cry of the collective for justice [pic] which includes adequate punishment cannot be lightly ignored." 16. In Gopal Singh vs. State of Uttarakhand, (2013) 3 SCC (Cri.) 608, the Apex Court has made the following observations: "18. Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence. A punishment should not be disproportionately excessive. The concept of proportionality allows a significant discretion to the Judge but the same has to be guided by certain principles. In certain cases, the nature of culpability, the antecedents of the accused, the factum of age, the potentiality of the convict to become a criminal in future, capability of his reformation and to lead an acceptable life in the prevalent milieu, the effect - propensity to become a social threat or nuisance, and sometimes lapse of time in the commission of the crime and his conduct in the interregnum bearing in mind the nature of the offence, the relationship between the parties and attractability of the doctrine of bringing the convict to the value-based social mainstream may be the guiding factors. Needless to emphasize, these are certain illustrative aspects put forth in a condensed manner. Needless to emphasize, these are certain illustrative aspects put forth in a condensed manner. We may hasten to add that there can neither be a strait-jacket formula nor a solvable theory in mathematical exactitude. It would be dependant on the facts of the case and rationalized judicial discretion. Neither the personal perception of a Judge nor self-adhered moralistic vision nor hypothetical apprehensions should be allowed to have any play. For every offence, a drastic measure cannot be thought of. Similarly, an offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a Court. The real requisite is to weigh the circumstances in which the crime has been committed and other concomitant factors which we have indicated hereinbefore and also have been stated in a number of pronouncements by this Court. On such touchstone, the sentences are to be imposed. The discretion should not be in the realm of fancy. It should be embedded in the conceptual essence of just punishment. 19. A Court, while imposing sentence, has to keep in view the various complex matters in mind. To structure a methodology relating to sentencing is difficult to conceive of. The legislature in its wisdom has conferred discretion on the Judge who is guided by certain rational parameters, regard been had to the factual scenario of the case. In certain spheres the legislature has not conferred that discretion and in such circumstances, the discretion is conditional. In respect of certain offences, sentence can be reduced by giving adequate special reasons. The special reasons have to rest on real special circumstances. Hence, the duty of Court in such situations becomes a complex one. The same has to be performed with due reverence for Rule of La, the collective conscience on one hand and the doctrine of proportionality, principle of reformation and other concomitant factors on the other. The task may be onerous but the same has to be done with total empirical rationality sans any kind of personal philosophy or individual experience or any a priori notion." 17. After considering the rival submission, it appears that there are material contradictions in the statement of the victim, which prove that the story set up by the victim is not absolutely correct. After considering the rival submission, it appears that there are material contradictions in the statement of the victim, which prove that the story set up by the victim is not absolutely correct. In one hand, she has stated that the accused took her inside the house and bolted the doors from inside and on the other hand, she has stated that the doors were locked from outside. She is not able to prove the time of the incident correctly and the date, time and registration of FIR. She is not able to state even the fact whether the FIR was registered in day or at night, when she admitted that she went to the police station. She has also stated that the FIR was registered only after the media persons were called and not in the normal course. Whether the FIR was registered on the same day and media persons came on the same day, has also not been stated. Chunni used for tying her hands and legs was not produced before the police. There is vital contradiction in her statement whether she was taken to her home by her parents or by the brother-in-law and sister of the appellant. It is proved that in the pathological report, the sperms were found on the undergarments of the victim, but this will not prove that the intercourse between them was forcible or consensual. The father and mother of the victim have tried to intensify the allegations by stating that the victim was threatened on point of knife, when the victim has not stated anything in this regard in her statement before the court or under Section 164 Cr.P.C. 18. From the proximity of the house of the victim and appellant, their age, their family relationship and long living in the same locality, the possibility of consensual relationship, cannot be ruled out. 19. From the proximity of the house of the victim and appellant, their age, their family relationship and long living in the same locality, the possibility of consensual relationship, cannot be ruled out. 19. This Court is also not unmindful of the observations made by the Apex Court in Sadashiv Ramrao Hadbe vs. State of Maharashtra, (2006) 10 SCC 92 , wherein it has been observed that it is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix if it is capable of inspiring confidence in the mind of the Court and if the version given by the prosecutrix is supported by medical evidence and the whole surrounding circumstances makes the case set up by the prosecutrix highly probable and believable. Therein it is also observed that the Court shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen. 20. Considering the questionable propensity of the prosecutrix, I am tempted to refer to the case of Moinul Hoque and Others vs. State of Assam, (2001) 1 GLR 516. In paragraph 16 of the judgment it is held as under: "It is true that a Court has to take seriously the cases relating to violence against woman. Simultaneously, the Court has a duty to guard itself against false charges of rape. The narration of the prosecution case is full of vital omissions and contradictions and it raises strong doubt which overshadows the genesis of the prosecution case. In my opinion, it would be unsafe to sustain the conviction in this case relying upon the testimony of the prosecutrix alone. Dignity of woman will have to be protected, but without aid of emotion. This is undoubtedly not a case where the prosecutrix has the last say." 21. The prosecution has failed to prove the offence alleged against the appellant beyond doubt, even the victim has not consistent in her statement and her statement appears to be a mixture of true and false statements. There is no explanation how a single Chunni can be used for tying her legs and hands altogether at the same time. The prosecution has failed to prove the case against the appellant beyond doubt and the burden of proving the allegations against the appellant has not be discharged. 22. There is no explanation how a single Chunni can be used for tying her legs and hands altogether at the same time. The prosecution has failed to prove the case against the appellant beyond doubt and the burden of proving the allegations against the appellant has not be discharged. 22. The sentence of 10 years' rigorous imprisonment awarded to the appellant does not appears to be justified at all. The victim remained with the appellant for three hours as per her own admission and thereafter the fact that when her parents came on the scene of occurrence, she was slapped by her mother and the parents refused to take her alongwith them and later it is stated by the victim that the sister and brother-in-law of the appellant took her to her parents' house. From the proximity of the house of victim to the house of the appellant and the admission, fact that she used to frequent the house of the appellant, proves that there was big possibility of consenting relationship between the appellant and the victim. The fact that the first information report was lodged only after the Media came shows that there was ailment of pressure built on the police to lodge the FIR. The medical examination of the victim does no supports the prosecution case at all. She admitted that if someone calls from her house, it can be hard at the appellant's house and therefore, what prevented the victim from raising alarm, which could have been heard in her house, has not been explained by the prosecution. The fact that the father of the victim was drunked and he wanted to marry the victim to the appellant as stated by the appellant in his statement under Section 313 Cr.P.C. cannot be absolutely ruled out. 23. The finding of the court that the prosecution has succeeded in preventing the allegation against the appellant beyond doubt is unwarranted under the law and cannot be sustained. The prosecution case appears to be improbable from the manner, in which, the offence was alleged to have been committed. 23. The finding of the court that the prosecution has succeeded in preventing the allegation against the appellant beyond doubt is unwarranted under the law and cannot be sustained. The prosecution case appears to be improbable from the manner, in which, the offence was alleged to have been committed. The contradiction in the statement of victim that the doors of the house were locked from inside at the time of commission of offence and then her statement that the doors were locked from outside and only opened when the sister and brother-in-law of the appellant came, has not be explained by the prosecution. Who closed the doors from outside after the victim was taken in the house by the appellant, was not explained. The truth of the statement of the victim was not tested by the court below on the sound principle of rationality and it was believed without application of mind. 24. After considering the totality of the facts and circumstances of this case, it is not a case of releasing the appellant on the basis of the sentence undergone, but it is a case of acquittal. The prosecution has miserably failed to prove the offence alleged against the appellant beyond the doubt and, therefore, the order of the conviction and sentence by the court below is not justified and is hereby set aside. 25. This appeal is allowed. The appellant is acquitted. The appellant is in jail since 16.3.2013. He shall be released forthwith. The record of this case be sent back to the court below for necessary follow-up action within a week.